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What the e360 Decision Means to You

Posted on April 15, 2008
by Chief Marketer Staff

If there is one message American marketers should take away from last week’s court ruling against e-mail marketer e360 Insight, it’s this: Rightly or wrongly, simply being Can Spam compliant is not enough to get e-mail delivered.

Those who are on top of this story can skip the next four paragraphs. But for those who missed it, Judge James B. Zagel in U.S. District Court in Northern Illinois last week ruled that Comcast is not liable for mistakenly blocking even permission-based e-mail when it’s part of a good-faith effort to protect its subscribers from spam, nullifying a lawsuit brought by e360’s CEO Dave Linhardt against the cable broadband provider.

Linhardt sued Comcast in January, accusing it of unfairly blocking messages that he said were permission based.

However, judge Zagel ruled that compliance with Can Spam “does not evict the right of the provider to make its own good faith judgment to block mailings.”

He added: “Under the law, a mistaken choice to block, if made in good faith, cannot be the basis for liability under federal or state law.”

Translation: Internet service providers are on the power end of the e-mail sender/receiver relationship. They don’t care about e-mail marketers’ business models. They don’t care if the addresses are single, double or triple opt in. They care only about their subscribers and whether or not THEY consider messages to be spam..

People’s sentiments are with the ISPs on this issue –judges are people, remember?—and these sentiments are not likely to change. Marketers who get e-mail blocked have only one option: Figure out whatever it is they’re doing that makes their messages look spammy and change it.

This is not about what is fair or unfair. It is about simply what is.

Laura Atkins of deliverability consultancy Word to the Wise recently published a very straightforward list of do’s and don’ts on how people who find their e-mails are getting blocked should deal with ISPs.

Among them: “Do not mention Can Spam. That’s like saying ‘I do the bare minimum the law requires and expect you to accept my mail anyway.” And: “Do not ask them to remove the block. Ask them what you did to get blocked and how to avoid being blocked in the future.”